Docket No: 3528-19 
Ref: Signature Date 


This is in reference to your application of 21 March 2019 for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

A three-member panel of the Board, sitting in executive session, considered your application on 7 May 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. 

You enlisted in the Navy and began a period of active duty on 24 November 1978. On 3 January 1981, you left your duty station without legal authority and went into an unauthorized absence (UA) status.  You remained in a UA status until you surrendered to military authorities on or about 8 September 1981, a period of approximately 248 days. 

Unfortunately, your administrative separation (Adsep) documents are not in your electronic service record.  However, based on the information contained on your Certificate of Release or Discharge from Active Duty (DD Form 214), you submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for your lengthy UA period.  In block 29 of your DD Form 214 it states “TL” (Time Lost) was 3 January 1981 through 7 September 1981.  Time Lost describes periods on active duty spent either in a UA status or while serving in military confinement. 

As a result of submitting your voluntary discharge request, you were spared the stigma of a court-martial conviction for your long-term UA, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  On 2 February 1982, you were separated from the Navy with an under other than honorable conditions (OTH) discharge.  The Board noted that on your DD Form 214 the narrative reason for separation is “For the Good of the Service,” and your separation code is “KFS,” which corresponds to an Adsep in lieu of a trial by court-martial.  The Board also observed that you have a“Page 13” in your record dated 2 February 1982 documenting your Adsep request as well as your OTH discharge. 

The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) following a failed knee surgery you did not trust Navy medical personnel to competently surgically repair your knee so you absented yourself to seek civilian treatment, (b) at the time of your misconduct you truly believed that going into a UA status was your best option, (c) that you take full responsibility for your misconduct and recognize that your actions fell below the high standards of conduct expected of service members, (d) that you remain proud of your service in the Navy and are truly repentant about your misconduct, (e) once you had completely healed from your second surgery and was mobile you returned to and surrendered yourself, (f) that you had no other history of misconduct prior to this incident, (g) that you have been deprived of your honor and good name which continues to cause you undue harm nearly thirty-seven years after your discharge, (h) that you have been stigmatized, harmed, and haunted by your OTH discharge, (i) your misconduct robs you of the opportunity to be recognized as a veteran upon your death and your family will not receive the honor of being awarded a folded flag at your funeral, and (j) you accept responsibility for your actions and wish to restore your good name and honor so that you may speak proudly about your time in the Navy without any lingering sense of dread or remorse. 

The Board, however, determined your mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other ancillary relief in your case given your voluntary request for an undesirable discharge in lieu of a trial by court-martial, and the overall seriousness of your misconduct.  Moreover, the Board observed that there is no provision of federal law or in Navy/Marine Corps regulations that mandates or provides for a discharge to be automatically upgraded after a specified number of years. The Board also noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by a single incident of misconduct may provide the underlying basis for discharge characterization.  

The Board also reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including negative post-service conduct, such as any arrests, criminal charges, or any convictions.  Accordingly, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 

Finally, despite the fact that your Adsep records were not in your service record, the Board relies on a presumption of regularity to support the official actions of public officers.  In the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumes that you were properly processed for separation and discharged from the Navy.  In the end, the Board concluded that you received the correct discharge characterization based on your circumstances, and that such OTH characterization was in accordance with all Department of the Navy directives and policy at the time of your discharge. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

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